A judge rejected Napster's "home recording" argument because, in her view, computers and disk drives are not audio recording devices. But the mere existence of Napster and the homespun MP3 files its users swap suggest the need for a rethink. If they're not audio recording devices, why do PCs come with sound cards and microphones?

By
Nico Detourn
July 31, 2000

Just nine hours before a Friday midnight deadline would have shut down the Napster music-trading service, the 9th U.S. Circuit Court of Appeals hit the "Pause" button, granting the upstart its request for an emergency stay of an injunction issued last Wednesday by U.S. District Judge Marilyn Hall Patel.

As a result, Napster can continue operating, unchanged, pending resolution of a suit filed last year by the Recording Industry Association of America (RIAA) alleging massive copyright violations. Napster's request for an expedited appeal was also granted: It has until August 18 to file a legal brief, with a response from the RIAA due September 8.

Napster the company was not legally required to shut down Napster the trading service and community in order to comply with Wednesday's injunction. But because most of the activity on the service involves the swapping of copyrighted material, the company acknowledged that the only practical way to comply was to pull the plug.

The RIAA shed no tears at that prospect, and a lawyer for outspoken anti-Napster artists Dr. Dre and Metallica said of the injunction: "We couldn't have written a better decision if we had been given the pen ourselves." The late-Friday decision put the pen in the other hand.

Napster was granted a stay of self-execution not because of the merits of its position in the copyright suit, but because the appellate court found that the company's lawyers "raised substantial questions" about the procedures of the earlier hearing and the form of the injunction itself.

Sound on sound judgment
In its request for an emergency stay, Napster claimed that the judge based the injunction on "a distinction between 'personal' and 'non-commercial' use," for which no precedents exist, and which is less clear-cut than the distinction between "commercial" and "non-commercial" use. The company also claimed the injunction "extended copyright law to cover new technologies," which ignores the Supreme Court's preference that such issues be left to Congress.

These issues cut to the heart of the case. Especially noteworthy is how Napster's argument that the Audio Home Recording Act of 1992 applied in this case was rejected by Judge Patel because, in her view, computers and disk drives are not audio recording devices. Yet the mere existence of Napster and the homespun MP3 files its users swap -- to say nothing of the very case the judge was at that moment hearing -- suggest the need for a rethink, if not an overhaul of the law. If they're not audio recording devices, why do PCs come with microphones and sound cards?

This case has broad implications not only for Napster, the music industry, and consumers, but for how the Internet will develop as a cultural resource, commercial medium, and commerce platform. Napster won an interim procedural victory in getting the injunction stayed. But rather than settling anything, the appellate court's acceptance of some of Napster's arguments only reaffirms the importance and intricacy of the issues to be resolved. We've only heard a verse and a chorus or two of "The Ballad of Napster." There's no telling how this song will play out.